IFTIKHAR HUSSAIN CHAUDHRY, C.J.--- By this single judgment, I propose to decide Civil Revision Petition Nos. 1963, 2010, 2487 and 2488 of 2004, all of which involve common questions of facts and law, and are directed against similar judgments and decrees, dated the 16th of March, 2004 of a learned Additional District Judge, Lahore.
2. Civil Revision No. 1963 of 2004 filed by the Lahore Development Authority (LDA) and Civil Revision No. 2488 of 2004 filed by the Province of Punjab through the Secretary Education have arisen out of a suit filed by Mst. Anwer Sultana, respondent No. 1 herein. The case of the-lady was that her husband, Inayatullah Khan, was in occupation of a plot, measuring 17-marlas bearing Khasra No. 4725 within the revenue estate of lchhra, Lahore. It was stated in paragraph 1 of the plaint that in the record of Auqaf Department, the suit property had been allotted Plot No. 367/329. House No. 8/C, Street No. 15, whereas according to LDA's Survey Record, it was allocated Plot No. 315, Ahata Mooi Chand, Katchi Abadi, lchhra, Lahore and existed ever since 1953-54. The plaintiff further pleaded that the plot had been encroached upon by different persons and at the time of filing of the suit in the year 1990 its area was 10 marlas 87 sq.Ft., that the husband of the plaintiff had allegedly raised construction over an area measuring 5 marlas, where he started running a School by the name of Anwar-ul-Taaleem Model School; that the plot was at a considerable depth and the plaintiff's husband had incurred some expenditure on its maintenance etc; that the plaintiff's husband had died in the year 1972 whereafter she had occupied the same; that the said School was in occupation of her son, Mustansar Billah Khan, plaintiff-respondent No. 1 in the other two petitions; that the .Remaining portion, measuring 5- marlas 87 sq.Ft. Was a plot and was in her exclusive possession; that she was Headmistress of the School; that after 1972 the property-tax was paid by the plaintiff's son, who had got water connection for the School in his name; - that although pursuant to Martial Law Regulation No. 118, the School had been nationalized and its management and control was assumed by the Government with effect from theist of October, 1972 and the School was renamed as Government Anwaar-ul-Taaleem School, yet the adjoining plot remained in her possession, as an independent unit; that vide Notification No. DSG/2508/ETPB/77/Vol.11/10004, dated the 22nd of October, 1985, the suit property had been declared as "Katchi Abadi"; that in the survey conducted by the Lahore Development Authority. She was shown in possession of the suit plot; that so far as the adjacent plot in which there was a Primary School, was concerned, it was being run, supervised and administered by her son, Mustansar Billah Khan, on her behalf of which she was Headmistress as mentioned above; that after 1972, the Education Department had become a tenant in the School under his said son at a monthly rent of Rs. 300/- which was being paid to him; that all the occupants of Ahata Mool Chand had been conferred proprietary rights being in possession of Katchi Abadi, but the matter of conferment of proprietary rights so far as she was concerned was being delayed for ulterior motives and with mala fide intention hence the necessity of the suit by her, seeking declaration that she was entitled to conferment of proprietary rights and, as a consequential relief, for direction to the Director, Katchi Abadi, LDA, to allot the suit property to her, and not to alienate the same in favour of any other person.
3. Civil Revision No. 2010 of 2004 filed by the LDA and Civil Revision No. 2487 of 2004 filed by the Province have arisen out of the suit filed by Mustansar Billah Khan, respondent No. 1 in the said two petitions. The facts pleaded by him were exactly the same as were stated by his mother Mst. Anwer Sultana, in her suit and to which reference has been made in the preceding paragraph. Therefore, the same need not be repeated over here.
4. In the statements, filed in the two suits on behalf of the Province, it was pleaded inter alia that the suit property was Evacuee Trust Property; that in view of the Federal Government's letter No. F-4(2)
MP/MTP/84, dated the 5th of July, 1980 of the title of the property was to be transferred to the Education Department; that the School building was raised by the ex-Management with the donations collected from the inhabitants of the locality as well as from the running income of the School itself; that the School was located in Ahata Mool Chand, lchhra; that when the said Ahata was declared as Katchi Abadi, the Evacuee Trust Property Board conferred proprietary rights on those occupants who were in possession of land upto 5 Marlas and had no other property in the whole of Pakistan; that Mst. Anwer Sultana was only a Headmistress of the School, and she as well as her son, Mustansar Billah Khan, were not occupying the suit property; that they were living in Samanabad, and in House No. 153//S, Model Town Extension, Lahore, respectively; that they were owners of properties in Lahore and were thus not entitled to the conferment of proprietary rights with regard to the property subject-matter of the two suits; that the said Katchi Abadi had been handed over by the Evacuee Trust Property Board to the Lahore Development Authority for management, Doubtless, LDA in its written statement had pleaded that Plot No. 316 measuring 10- Marlas 87 sq.Ft. Was shown in occupation of Mst. Anwer Sultana wd/o Inayatullah Khan, but in the written statement filed on behalf of the Province it was unmistakably mentioned that the said lady fraudulently got her name entered in the record of LDA.
5. In view of the divergent pleas of the parties, the learned Trial Judge settled six Issues and put the parties to trial. After recording evidence, both the suits were decreed on 24th of April, 1996. The appeals filed by the Province and the LDA were, however, accepted on 20th of October, 1998 by a learned Additional District Judge, Lahore, who by setting aside findings of the Trial Court on all the Issues, framed eight additional Issues and remanded the case to the Trial Court for decision afresh, after inviting the parties to adduce further evidence, if so desired by them. In post-remand proceedings, both the suits were again decreed by the learned trial Judge vide identical judgments and decrees, dated 19th of December, 2000. The Province as well as LDA challenged decrees in both the suits by filing separate appeals which were dismissed on 16th of March, 2004 by a learned Additional District Judge, Lahore. Hence these four revisions petitions, two each by the Province and the LDA, against the aforementioned judgments and decrees rendered in the two suits. Since common questions of law and facts are involved in all the four petitions, the same have been heard together and are being disposed of by this single judgment.
6. It is a common ground between the parties that the suit property in both the suits was Evacuee Trust Property and had been transferred to the LDA through Notification No. DSG/2508/ETPB/77/Vol.11/10004, dated the 22nd of October, 1985, for its disposal in accordance with the policy governing Katchi Abadis. The moot question that arose for consideration in both the suits was whether the plaintiffs therein qualified themselves for conferment of proprietary rights with regard to the portions'of the properties allegedly in their occupation.
7. Muhammad Zubair (PW-4) during cross- examination conceded that Mustansar Billah Khan was residing in Model Town whereas Mst. Anwer Sultana was residing in Samanabad for the last 10/12 years. He also admitted that the area of School was 17-Marlas and odd, and that the open plots was a part of the School, which was lying vacant and was not in occupation of any person, rather the same was in use of the School.
Muhammad Ahmad Khan (PW-6) besides being son of Mst. Anwer Sultana, is the real brother of Mustansar Billah Khan as well as his Attorney. In the cross-examination he too conceded that Mustansar Billah Khan was residing at 53/S, Model Town; for the last about 8 years whereas his mother Mst. Anwer Sultana was residing at 37-F, P&T Colony, for the last 3/4 years. According to PW Hafeez-ud-Din, Rent Controller Evacuee Trust Property Board, as per Survey Registrar for the year 1975, area measuring 10-Marlas 99 sq.Ft. Was shown in occupation of Mustansar Billah Khan. The said witness further deposed that out of the said area, 530 sq.Ft. Was under construction whereas an area measuring 1818 sq.Ft. Was lying vacant. In the cross-examination, he conceded that the entire area formed one single unit as per record. Mst. Anwer Sultana, plaintiff while appearing as PW6 deposed that she got the suit property in 1952-53 when its area was 15/16 marlas. On the one hand she deposed that the School Constructed on 5-Marlas was in occupation of her son, Mustansar Billah Khan and, on the other, she stated that the water connection of the portion in her possession, measuring 5-Marlas 87 sq.Ft. Was also in the name of her said son and he alone used to pay the property-tax as well She deposed that she used to look after the place, being .1..R.
Headmistress of the School, but had retired during pendency of the suit, and that, after her retirement, a Teacher looks after the property whereas she herself visits the place occasionally. In the cross-examination, she admitted that she was residing P&T Colony. So far as Mustansar Billah Khan is concerned, she stated that he works abroad; remains outside the country for months together, and has his own residence in Model Town. Doubtless, she improved her statement in the next breath by saying that House No. 53-S, Model Town Extension where Mustansar Billah Khan was living was owned by his mother-in-law. She candidly conceded that at the time her statement was recorded on 27th of June, 1992, the School was being run by the Education Department, though claimed that she was in possession through a lady whom she had employed. According to the copy of Assessm ent from Register in Form PT-I for the year 1971-72 (Ex.D/1) total area of the property is mentioned as 17-Marlas; its owner is shown to be Mustansar Billah Khan whereas its occupant is Primary Anwar-uldslam School. This is the state of evidence of the plaintiff's in the two suits on the basis of which it has to be determined whether they could be held entitled to the grant of proprietary rights.
8. In the year 1992, Punjab Katchi Abadis Act (No. VIII) was promulgated. Later on, Government of the Punjab issued Policy Instructions regarding Regulation/Development of Katchi Abadis in Punjab and for grant of proprietary rights to the dwellers of Katchi Abadis. The word "dweller" had not been defined anywhere either in the Act or in the Instructions/Regulations aforementioned. However, as per ordinary dictionary meaning, "dweller" is one who wells or resides in a place, an inhabitant, a resident etc. Clauses (a) and (b) of Regulation No. 4 dealing with the eligibility for the grant of proprietary rights read as follows:---
4. Eligibility for the Grant of Proprietary Rights.
"(a) Any person in possession of any State land in a Katchi Abadi, which has been transferred to the Local Council/Development Authorities and which does not conflict with the straightening the streets or providing the civic amenities on which he has - constructed a dwelling unit before 23.3.1985 and whose name is recorded in survey list, shall be granted proprietary rights in respect of the same land or a portion thereof.
(b) Proprietary Rights will not be transferred in the name of any person who has not constructed a Dwelling Unit in a Katchi Abadi before the cut of date i.e. 23.3.1985 and has merely erected a boundary wall to show his possession. Such premises should be sealed immediately and possession taken over for making allotment to such affected_ persons whose dwelling are to be demolished during the process of the straightening of streets, pavement etc."
The term "Dwelling Unit" has been defined in Section 2(4) of 1992 Act to mean "a house or any similar structure, built of any . Material, and used wholly or partially for human habitation".
Doubtless, in the Policy Instructions/Regulations, it was laid down that plots in Katchi Abadis measuring upto 5-Marlas it partly used for commercial alongwith residential accommodations, can be considered as residential plots. However, so far as the properties, subject-matter of the two suits are concerned, the same are not covered by the "dwelling unit" inasmuch as according to the case of the plaintiff themselves, half of the premises are lying upon whereas in the remaining half construction has been raised, wherein a School is being run. Admittedly, at one time, area of the plot was a little more than 17-Marlas. The witnesses of the plaintiffs have themselves deposed that the entire area forms open unit; that the open plot which was lying vacant was not in occupation of any person, and that the same was having utilized by the School. It has also come on record, through the evidence of witnesses of the plaintiffs themselves, that the plaintiffs are neither in occupation nor residing in any part of the property. Mst. Anwer Sultana appears to have taken undue advantage of her 'position, being Headmistress of the School. Be that as it .May, according to the evidence of the plaintiffs themselves, the property, subject-matter of the two suits, can neither be regarded as a "dwelling unit" nor either of the two plaintiffs qualifies to be a "dweller".
9. In support of the claim of Mst. Anwer Sultana, her learned counsel relied on a Sanad Malkiyat allegedly issued in her favour regarding Plot No. 316, Ahata Mool Chand. The contention is devoid of force. Regulation No. 15 Which is relevant in the context, reads thus: "15, Sanad of Proprietary Rights.
A uniform pattern of "Sanad of Proprietary Rights" has been approved, and distributed to all Local Authorities. Sanads should be given when the dwellers of Katchi Abadis have paid all the dues."
It is not the case of Mst. Anwer Sultana that she has paid all the dues before the alleged Sanad Malkiat was issued in her favour. Even otherwise, the said Sanad is, not beyond suspicion.
10. It was lastly submitted that the Education Department of Government of Punjab had been paying rent of the School premises to Mustansar Billah Khan, plaintiff-.Respondent, treating itself as tenant and the said plaintiff as owner of the premises. The well known principle, once a tenant is always a tenant, is invoked in support of this contention . The contention is devoid of merit. The case of Mustansar Billah Khan himself is that the land underneath the School premises was owned by the Evacuee Trust Property Board, and having been declared as Katchi Abadi, was. Transferred by the said Board to Lahore Development Authority in the year 1985. On 1st of April, 1972, Martial Law Regulation No. 118 was promulgated by the then Chief Martial Law Administrator. The same was continued in force by the Interim Constitution of the Islamic Republic of Pakistan, 1972 which came into force on the 21st of April, 1972, when the Martial Law was lifted. However, by force of Article 280(3) of the Interim Constitution, Martial Law Regulation No. 118 became an Act of the appropriate Legislature. According to paragraph 5 of the said Regulation, the privately managed schools notified by the Provincial Government were to vest in the said Government. Ordinance No. XXVI of 1972, promulgated by the Governor of Punjab in this behalf was replaced by the Act of Provincial Legislature, namely, Martial Law Regulation No. 118 (Punjab Amendment) Act (No. X) of 1973, which was, later on, designated as "Privately Managed Schools and Colleges (Take-one) Regulation, 1972.
In paragraph 5 of the plaint of the suit of Mst. Anwer Sultana and in paragraph 3 of the plaint of the suit of Mustansar Billah Khan, it was admitted that the School existing on the suit premises was nationalized under Martial Law Regulation No. 118 and the management on the School was taken over by the Government of Punjab. Thus whereas the land underneath the School admittedly belonged to the Evacuee Trust Property Board on the cut-off date, i.e. 23.3.1985, the management of the School vested in the Provincial , Government and, therefore, the two plaintiffs were neither in possession of the suit premises nor were residing therein on the target date. In the circumstances, neither the suit property was a "dwelling unit" nor either of the two plaintiff was a "dweller" and thus they were not eligible for conferment of the proprietary rights.
11. There is yet another aspect of the matter. On the one hand, Mustansar Billah Khan is seeking proprietary rights qua the suit property, and on the other, he claims to be the owner of the property and allegedly receiving rent from the Education Department. The plea raised on his behalf is self- contradictory. The said plaintiff cannot be regarded as owner of the suit property merely because he had been receiving rent from the Education Department of the Government of the Punjab.
12. In revisional jurisdiction this Court normally does not interfere with concurrent findings of facts.
But, in the instant case. Having gone through the evidence on record, I have no doubt in my mind that Mst. Anwer Sultana and Mustansar Billah Khan have failed to make out a case for conferment of proprietary rights as dwellers of Katchi Abadis, known as Ahata Mool Chand, Ichhra, Lahore. The findings recorded by the Courts below are not supported by the evidence on record. Moreover, the impugned judgments being patently illegal, I have no option but to interfere with the same.
13. For the foregoing reasons, all the four Revisions Petitions are accepted, the impugned judgments and decrees dated 19.12.2000 and 16.3.2004, rendered respectively by the learned Civil Judge, and the learned Additional District Judge, Lahore, are set aside and resultantly the suits filed by Mst. Anwer Sultana and Mustansar Billah Khan, respondents, shall stand dismissed. The property shall be deemed to be a part of Katchi Abadi and shall vest in Lahore Development Authority, in view of the Notification, dated 22.10.1985 aforementioned. It shall now be open for LDA to deal with the property in accordance with law. The parties are left to bear their own costs.
Civil revision .